945 F.

2d 398

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Grace SCOTT, now known as Grace M. Humphrey, PlaintiffAppellant,
v.
Michael P.W. STONE, Secretary of the Army, DefendantAppellee.
No. 91-1407.

United States Court of Appeals, Fourth Circuit.

Submitted April 15, 1991.
Decided Oct. 1, 1991.

Appeal from the United States District Court for the District of South
Carolina, at Columbia. Clyde H. Hamilton, District Judge. (CA-89-30593-15H)
Grace Scott, appellant pro se.
Barbara Cozad Biddle, Robert David Kamnshine, United States
Department of Justice, Washington, D.C., Theresa Hern Potts Bailey,
Office of the United States Attorney, Columbia, S.C., John Henry Belser,
Jr., United States Army, Arlington, Va., for appellees.
D.S.C.
VACATED AND REMANDED.
Before K.K. HALL and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
OPINION

PER CURIAM:

This case presents the issue of whether under 42 U.S.C. 2000e16, requiring a
law suit challenging federal employment discrimination to be filed "[w]ithin
thirty days of receipt of notice of final [agency] action," and under the EEOC's
new regulations governing motions for reconsideration, the thirty days runs
from the EEOC's initial denial of a plaintiff's claim or from its denial of
reconsideration. We hold that the filing period commences on the date of denial
of reconsideration, and vacate the district court's decision dismissing the action
as untimely.

Grace Scott filed a complaint with the Equal Employment Opportunity

Commission (EEOC) against the Secretary of the Army in May of 1986. The
complaint alleged discrimination based on race, and reprisal, in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et
seq. The EEOC Office of Review and Appeals issued its final decision on May
20, 1988. Thereafter, Scott filed a timely motion to reconsider, which was
denied on May 16, 1989.* She filed the instant civil action in the district court
on June 26, 1989. The district court dismissed the case for lack of subject
matter jurisdiction, concluding that it was untimely. Scott appeals.

In dismissing her complaint, the district court held that the provisions of
2000e-16, giving an aggrieved person thirty days from the receipt of notice of
final agency action within which to file a civil suit, should be interpreted to
refer to the initial "final" agency action, not the denial of a motion to reconsider.
As support for its holding, the court cited to our opinion in Birch v. Lehman,
677 F.2d 1006 (4th Cir.1982), cert. denied, 459 U.S. 1103 (1983). In Birch, we
expressed our concern that if the "final" agency action referred to the denial of
motions to reconsider, "no decision by the EEOC could be regarded with
certainty as a 'final action' since a plaintiff could revive his claim at any time,
merely by requesting reconsideration. Such a result would render the statutory
30-day requirement meaningless." Id. at 1008. At the time Birch was decided,
the EEOC regulations did not limit the number of times a plaintiff could file
requests to reopen. See 29 C.F.R. 1613.235 (1986). We thus held that the
filing of a request to reopen would not toll the period for filing a civil action.

Our view at that time was apparently shared by the EEOC. The form it used to
notify a plaintiff of its decision stated that the decision was "final" and that the
plaintiff had thirty days from its receipt within which to file a civil action. The
form went on to state that "FILING A REQUEST TO REOPEN*** MAY NOT

EXTEND THE TIME PERIOD ALLOWED FOR FILING A CIVIL ACTION.

IF YOU WISH TO PRESERVE YOUR RIGHT TO FILE A CIVIL ACTION,
THE CIVIL ACTION SHOULD BE FILED WITHIN THE TIME ALLOWED,
EVEN IF YOU DECIDE TO REQUEST REOPENING*** ." (capitalization in
original).
5

Since our decision in Birch, the EEOC has changed its regulations regarding
the definition of a "final" agency action for the purposes of filing a civil suit.
An individual is now limited to one request to reopen and the decision on that
request is considered final. 29 C.F.R. 1613.235(d). In addition, the regulations
now explicitly state that the initial decision by the EEOC Office of Review and
Appeals is "final" for the purposes of filing a civil suit unless "[w]ithin 30 days
of receipt [of] a decision [by the Office of Review and Appeals], either party
files a timely request to reopen...." 29 C.F.R. 1613.234(b)(1).

These changes, which became effective on November 30, 1987 (52 Fed.Reg.
41920 (1987)), reflect the EEOC's recognition of the concerns expressed in
Birch :

The new 29 C.F.R. 1613.235 makes clear that only a timely request to reopen
defeats the finality of a decision for purposes of commencing a civil action.

Requests to Reopen: The current regulation does not specify how many
requests to reopen the Commission would entertain that arise out of the same
decision. In the past, the Commission occasionally accepted more than one
such request. As a consequence, parties sometimes used the process as a
delaying tactic. The new provisions indicates [sic] the Commission's intention
to consider matters on requests to reopen only once. No further administrative
review of a decision under 1613.235 is available to either party. 51 Fed.Reg.
29484 (1986). Therefore, neither the regulations nor the reasoning expressed in
Birch support the district court's opinion in this case.

In changing the regulations, the EEOC was clearly exercising its statutory
power according to 42 U.S.C. 2000e-16(b) which gives the EEOC authority
to "issue such rules, regulations, orders and instructions as it deems necessary
and appropriate to carry out its responsibilities under" the provisions relating to
discrimination in employment by the federal government.

10

For the foregoing reasons, we vacate the decision of the district court, and
remand the case for full consideration on the merits of the complaint. We
dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the Court and argument would not
aid the decisional process.
11

VACATED AND REMANDED.

Scott received this decision on May 30, 1989